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How Section 230 is like arson laws when it comes to enjoining website operators

The case of Blockowicz v. Williams, — F.Supp.2d —, 2009 WL 4929111 (N.D. Ill. December 21, 2009), which I posted on last week is worthy of discussion in that it raises the question of whether website operators like Ripoff Report could get off too easily when they knowingly host harmful third party content. Immunity under 47 U.S.C. 230 is often criticized for going too far in shielding operators. Under Section 230, sites cannot be treated as the publisher or speaker of information provided by third party information content providers. This means that even when the site operator is put on notice of the content, it cannot face, for example, defamation liability for the continued availability of that content.

Don’t get me wrong — the Blockowicz case had nothing to do with Section 230. Although Ben Sheffner is routinely sharp in his legal analysis, I disagree with his assessment that Section 230 was the reason for the court’s decision. In the comments to Ben’s post that I just linked to, Ben gets into conversation with Ripoff Report’s general counsel, whom I believe correctly notes that the decision was not based on Section 230. Ben argues that had Section 230 not provided immunity, the plaintiffs would have been able to go after Ripoff Report directly, and therefore Section 230 is to blame. That’s kind of like saying if arson were legal, plaintiffs could just go burn down Ripoff Report’s datacenter. But you don’t hear anyone blaming arson laws for this decision.

Even though Section 230 didn’t form the basis of the court’s decision in favor of Ripoff Report, the notion of a website operator “acting in concert” with its users is intriguing. Clearly the policy of Section 230 is to place some distance, legally speaking, between site operator and producer of user-generated content. And the whole idea behind the requirement in copyright law that infringement must arise from a volitional act and not an automatic action of the system is a first cousin to this issue. See, e.g., Religious Tech. Center v. Netcom, 907 F.Supp. 1361, 1370 (N.D. Cal. 1995) (“[T]here should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”).

For the web to continue to develop, we are going to need this continued protection of the intermediary. We’re going to see functions of the semantic web appear with more frequency in our everyday online lives. From a practical perspective, there will be even more distance — a continuing divergence between a provider’s will and the nature of the content. So as we get into the technologies that will make the web smarter, and our experience of it more robust and helpful, we’ll need notions of intermediary immunity more and not less.

That notion of an increasing need for intermediary immunity underscores how important it is that intermediaries act responsibly. No doubt people misunderstand the holdings of cases like this one. By refusing to voluntarily take down obviously defamatory material, and challenging a court order to do so, Ripoff Report puts a bad taste in everyone’s mouth. Sure there’s the First Amendment and all that, but where’s a sense of reasonable decency? Sure there’s the idea that free flowing information supports democracy and all that, but has anyone stopped to think what could happen when the politicians get involved again?

We are fortunate that Congress was as equinamimous and future-minded as it was in 1996 when it enacted the immunity provisions of Section 230. But results like the one in the Blockowicz case are going to be misunderstood. There’s a hue and cry already about this decision, in that it appears to leave no recourse. Section 230 wasn’t involved, but it still got the blame. Even the judge was “sympathetic to the [plaintiffs’] plight.”

So maybe we need, real quickly, another decision like the Roommates.com case, that reminds us that website operators don’t always get a free ride.

9 thoughts on “How Section 230 is like arson laws when it comes to enjoining website operators”

As you correctly point out (and as I stated in my post), the court’s opinion was not directly about Section 230; it was about FRCP 65. But Section 230 looms large over the entire case, and explains why the court even had to interpret the “in concert” provision of the rule. To illustrate, imagine that this case was not about Ripoffreport.com, but about an old-fashioned magazine, on paper, called The Monthly Ripoff Report. Imagine further that the magazine (just like the web site) prints reports, submitted by readers, about business that allegedly rip off their customers. If a report in that magazine libeled someone, it’s clear that, under the common law, the plaintiff would have a cause of action against the magazine (as well as against the actual author of the report). However, if the web site prints the exact same libelous report, it’s not liable, because of Section 230.

You write, “Ben argues that had Section 230 not provided immunity, the plaintiffs would have been able to go after Ripoff Report directly, and therefore Section 230 is to blame. That’s kind of like saying if arson were legal, plaintiffs could just go burn down Ripoff Report’s datacenter. But you don’t hear anyone blaming arson laws for this decision.” I disagree that my reasoning “kind of like saying if arson were legal, plaintiffs could just go burn down Ripoff Report’s datacenter.” Obviously, you can’t burn down anyone’s data center, because such forms of outrageous and violent self-help have always been illegal. But, as I pointed out above, a direct libel action against the publisher of libelous material is anything but outrageous self help. To the contrary, it’s the way that victims of libel have sought legitimate redress for hundreds of years under the common law. My point was that Section 230 effectively removes a remedy that was available under the common law; it has nothing to do with removing a “remedy” like arson, which was never available to anyone.

As I made clear in my original post, I’m not calling for repeal of Section 230; I agree that it has enabled a robust Internet marketplace of ideas. But I do think it’s worth examining whether its protections should be so absolute that it continues to provide protection to sites that host material already adjudicated by a court to be defamatory.

I completely disagree. Ripoff Report is doing exactly the right thing here. The real problem is that Ripoff Report had to spend more than $0 on legal fees for this case.

The right resolution is more speech. If someone doesn’t like what was said on Ripoff Report, fine. Put up an article explaining why what’s over on Ripoff is incorrect. But asking a court to remove something is clearly the wrong thing to do. Section 230 seems to be doing precisely the right thing here.

Good outcome, good taste in everyone’s mouth. The only thing I’d add would be that RoffRpt should be able to go after the plaintiffs for any expenses that they incurred.

As the lawyer for http://www.RipoffReport.com, I agree with you that this case was interesting and worthy of discussion. I also agree with you that many folks have misunderstood the case, particularly when they claim that the Communications Decency Act had anything to do with the outcome. Hopefully I can help explain why I think that view is incorrect and, in doing so, I can help people understand why this case does not justify discussions about changing the CDA.

As you correctly note, “the Blockowicz case had nothing to do with Section 230.” In all fairness, in our briefing I did argue that Section 230 precludes the entry of an injunction against a website for the removal of third party content (which is NOT a novel argument; many cases have expressly said this). However, this was only one of our arguments and the judge never reached that issue. As such, anyone who says that the CDA somehow played a role in this case is not getting the story straight. The ruling was not based on the CDA in any way.

Now, I’m not sure if I understand your arson example. Ironically, I have been involved in cases arising under the DMCA in which a party used a bogus takedown notice under 17 U.S.C. § 512(c)(3) in order to “burn down” the entire business of a competitor (notwithstanding the liability imposed under 17 U.S.C. § 512(f)), but that’s another story for another day. Trust me when I tell you that we’re all lucky the CDA doesn’t include the same type of notice-takedown provisions found in the DMCA.

As for this case, as you have said the argument has been made by other smart people that “had Section 230 not provided immunity, the plaintiffs would have been able to go after Ripoff Report directly, and therefore Section 230 is to blame.” From an outsider’s perspective, I can certainly understand that view, but under the unique facts of the case, this view is also wrong.

Why? Simple – because despite what others have written, the case had serious factual flaws which would likely have resulted in its dismissal regardless of whether Section 230 applied. What do I mean by that? Well, as I explained in detail elsewhere (http://episteme.arstechnica.com/eve/forums/a/tpc/f/174096756/m/391007372041?r=109000872041#109000872041), two of the three posts at issue were published in 2003 and the lawsuit was not filed until mid-2009. Given that the statute of limitations for defamation actions in Illinois is one year, it seems obvious that at least with respect to those posts, the statute of limitations would have barred the plaintiffs’ claims solely based on their age. In that case, the application of Section 230’s immunity would have been both unnecessary and irrelevant.

Because of this, I disagree with Ben Sheffner’s argument that Section 230 is the only reason the plaintiffs did not include Ripoff Report as a party to the case. I suppose it might have been one reason, but I personally doubt it. Instead, while someone should ask plaintiffs’ counsel to explain the reasons for his decisions, I think there’s a possibility that the exclusion of Ripoff Report was merely a tactical decision intended to ensure that there would not be any live defendant in the courtroom to inform the judge of any factual bases which might weigh against the plaintiffs’ request for injunctive relief (such as the statute of limitations, etc.). In other words, by deliberately excluding us from the case, the plaintiffs may have believed they increased their chances of winning. If that’s what happened, I don’t think Section 230 had any role in their decision and it’s certainly not to blame for the judge’s ruling.

Don’t forget – the Complaint in this case was never personally served on the actual defendants, so a default was nearly a certainty. Of course, Ripoff Report is well-known for its willingness to appear and defend cases, so adding us as a party would have meant that even if the real defendants didn’t show up, we would have, and we would have made sure the court was fully informed of the facts. Perhaps that was a risk the plaintiffs weren’t willing to take? Indeed, without anyone present in court to explain these issues to the judge, the plaintiffs were able to obtain a default injunction requiring the removal of speech which otherwise appeared to be long-since rendered non-actionable due to the statute of limitations. This, not Section 230, seems to be a likely reason we weren’t included in the case until after it was over.

Now, I fully agree with you that “[the] notion of an increasing need for intermediary immunity underscores how important it is that intermediaries act responsibly.” With that in mind, I think it should be noted that much of the speech at issue in this case was NOT about the plaintiffs (it was about their daughter who was not a party), and the plaintiffs admitted that many of the statements about their daughter were true. I don’t know how it is possible that so many have commented about this case without recognizing that fact, but I guess in some cases the truth just gets lost in the rhetoric, especially when it detracts from the eyeball-grabbing power of a blogger’s headline.

Placing rhetoric aside, if you walked a mile in our shoes and understood all of the facts of this case, I think you would agree that Ripoff Report has acted reasonably and responsibly here. Indeed, blindly removing speech under these circumstances would be grossly irresponsible and directly contrary to Congress’ intent when it enacted the CDA. The irresponsibly one-sided coverage of this case is largely to blame for these mistaken impressions.

Now, one final comment – despite all of the time and effort that has gone into discussing and debating this case, everyone (so far) has missed a basic but crucial point: notwithstanding the court’s decision not to require Ripoff Report to comply with an ex-parte default injunction, the plaintiffs are not without a remedy. First, they were awarded a judgment for 100% of the money damages they requested, even as to the statements which were facially time-barred. Second, as any lawyer experienced in Internet ligation should know, the plaintiffs could still obtain the removal of this content quickly and easily by following a few simple steps. Unfortunately, I’m not in a position to give them legal advice so I can’t explain what those steps are, but the reality here is that effective remedies remain available to the plaintiffs; they just have not pursued them yet.

David’s explanation is quite clear and raises important points, but I wanted to respond to one other misconception in Ben’s comment above — and it’s one that I pointed out to him months ago when he made the same error in a post again complaining about how unfair Section 230 is.

The purpose of Section 230 is to make sure liability is applied to the right party — the party actually doing the action. That’s all. Ben keeps claiming that it treats internet offerings different than offline offerings but that is not correct. His argument that a paper magazine would be liable leaves out a key point: to put together a paper magazine you have editors who carefully pick and choose what’s included and then *publish* it.

But that’s not what a website like Ripoff Reports does. It’s simply a tool. It’s more like the printing press that a magazine publisher would use. And no one would ever think of suing the printing press company. That’s just common sense. But, unfortunately, for some folks common sense isn’t so common once you get online, so (thankfully) Congress put in place Section 230 to make sure liability is properly applied on whoever actually published the material *rather than* the makers of the tools.

There is no “different treatment.” In fact, Section 230 serves as reasoned protection of common sense against those who get confused by the difference between a tool and a publisher online.

Mike Masnick’s description of Section 230 is simply contrary to the law. First, his suggestion that Section 230 does not “treat[] internet offerings different than offline offerings” is downright bizarre. Different treatment of Internet and offline offerings is the entire point of Section 230. To quote Prof. Eric Goldman, perhaps the leading academic authority on this issue:

“47 USC 230 was enacted in 1996 during the height of ‘cyberspace exceptionalism,’ the belief that the Internet was unique/special/different and therefore should be regulated differently. 47 USC 230 is a flagship example of such exceptionalism. It creates rules that really differ between the online and offline worlds, such that publishing content online may not create liability where publishing the identical content offline would. The medium matters.” (emphasis added)http://blog.ericgoldman.org/archives/2008/04/roommatescom_de_1.htm

There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech “providers and users of interactive computer services” when the defamatory or obscene material is “provided” by someone else.

Masnick also suggests (in direct contradiction to his previous argument that Section 230 does not afford different treatment to online and offline material) that different treatment is justified because sites like Ripoff Report are mere “tool[s],” while “to put together a paper magazine you have editors who carefully pick and choose what’s included and then *publish* it.” But his argument ignores the caselaw holding that Section 230 does protect web sites that “carefully pick and choose what’s included and then *publish* it.” See, e.g., Barrett v. Rosenthal, 40 Cal.4th 33 (Cal. 2006) (Section 230 immunity even where defendant took “active role in selecting and posting material disparaging plaintiffs”); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (Section 230 immunity even where defendant individually selected emails to include on listserv).

Section 230 unquestionably provides for different rules for online and offline content, whether the web site is merely a “tool” that passively reprints user-submitted content, or plays an active role in deciding which material to re-publish. The only way to conclude otherwise is to — as Masnick did — simply pretend that the case law does not actually exist.

Ben again is incorrect in his statements on Section 230. I did not ignore the case law — and in fact have written about both of those cases and explained why they made sense. But, again, the issue is in *properly applying liability* to the party who is actually liable. In the case of a paper magazine, the editors and publishers do much more than “pass on” a note from someone else. It is significantly more involved, and requires a lot more than clicking a button. In both of the cases cited, they involved merely clicking a button to repost or forward an email — quite different than laying out an entire magazine and choosing which content to fill it with.

Again, I believe my point stands. I know that Ben will disagree, but I have yet to see any evidence that the law is substantially different in any way. All Section 230 does is make sure that the liability is properly applied to the party liable. I cannot fathom how anyone can find that to be a bad thing.

Masnick asserts that I am “incorrect in his statements on Section 230,” but he fails to identify any allegedly “incorrect” statement, or explain why any of my statements supposedly contain errors. They do not.

Masnick again suggests that protection under Section 230 somehow depends on whether the site selects the material that is published. That is wrong, and he cites no case law to support this false assertion. He has simply invented a distinction that appears nowhere in the statute or case law. The fact is that Section 230 immunizes the host for publishing material provided by a third party, even if the host selects which submitted material to publish. For example, assume there’s a site called the “Ripoff Reviewer.” It invites users to submit reports on businesses, but those reports don’t automatically get posted. Rather, the site carefully reviews each one, and selects only a small percentage to display on the site. That site is still protected by Section 230, despite Masnick’s citation-free assertions.

As the passages from Prof. Goldman and Judge Berzon I quoted above explain, Section 230 was a conscious choice by Congress about how to apportion liability in the online context for user-submitted material. In the traditional, offline world, publications were liable for printing user submissions. If the NY Times printed a letter to the editor by a third party that was defamatory, the Times was on the hook. (The Times would have been on the hook for the allegedly defamatory third-party advertisement in NY Times v. Sullivan but for the Supreme Court’s announcement of the “actual malice” standard.) If Congress had remained silent, web sites would likewise be liable for their user submissions. Instead, it passed Section 230, to impose a different set of rules for the online world (technically, by providing that web sites “shall [not] be treated as the publisher or speaker of any information provided by another information content provider,” even where traditional publications would be treated as the publisher or speaker, and thus held liable for their torts).

One can argue that the choice to impose different rules for the online world was justified (as I do, with reservations), or not. But to deny that Section 230 did impose different rules is beyond frivolous, and it is telling that Masnick can cite no authority (other that himself) for this ridiculous position.

Not that my opinion is worth as much as, say, Professor Goldman’s, but let me offer a few comments from someone who’s pretty close this stuff –

First, you obviously disagree (strongly) as to whether § 230 really requires different treatment of online vs. offline publishers. My view is that in some ways, you’re both right and in other ways, you’re both wrong. The reason for that view is this — when it comes to online speech, there’s a broad spectrum of interactivity between the initial source of material (the author) and the site which actually makes that material available to the viewing public (we can call them the “publisher” even though under § 230, they’re not).

On one end of the spectrum you have totally automatic and non-interactive “publishers” like, say, Blogger.com. These sites exercise 0% control over what appears there. 100% of the content comes from the user and the operators of the site probably never even see anything before it is posted.

Sites on this end of the spectrum are like nothing more than blank pieces of paper upon which someone else chooses which words to write. On this end of the spectrum, I’m pretty confident that no one would ever argue that the paper-maker is to blame for the words written using his sheets of paper. So, as to these types of sites, I don’t think § 230 really requires any difference in treatment between online and offline activities even though theoretically it does treat them differently.

On the other end of the spectrum are sites where 100% of the content comes from other 3rd party sources but is complied and/or edited and then posted by the site’s operator. In this situation, you essentially have a site which is blank and the operator of the site goes out and fills it by actively selecting material from other places and then re-posting it (Google news?).

Assuming that all such material was intended for online publication by the original authors (thus removing the issue that arose in Batzel v. Smith), then it seems pretty clear that § 230 DOES require the law to treat this sort of conduct differently when done online vs. offline. If an offline publisher were to do this, obviously there would be no CDA immunity at all, so that is a difference. Of course, defamation has never been a strict-liability tort, so this doesn’t mean that the offline publisher would always lose. There are and always have been lots of other defenses that could apply to someone who innocently and in good faith does nothing more than just repeat someone’s else’s words…at least when the speech wasn’t blatantly non-credible. These defenses are, of course, even stronger in the case of public figures.

So, as to conduct on that end of the spectrum does § 230 treat online and offline publishers differently? I think technically YES, but in most cases the only real difference is that it takes away the “heckler’s veto” wherein a lawyer sends a cheap C&D letter to a website and the site chooses to remove the speech rather than incur the costs of litigation (even if it’s clear the site would win). As Judge Kosinski said in Roommates II, the primary purpose of § 230 is to protect an online publisher from having to “face death by ten thousand duck-bites fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties.” In other words, an online publisher is supposed to be spared from the costs of defending against the heckler’s veto while an offline publish still has to deal with them. This may be a clear difference in the way the two categories of publishers are treated, but given the massive volume of online speech and the substantial benefits which arise from allowing user-generated content, I think it’s a fair, reasonable, and well-justified distinction.

Having said this, it could still be argued that § 230 does treat online and offline publishers differently in at least one other major way – if an online publisher “knows” that he is publishing something false, § 230 will still protect him whereas an offline publisher would normally be liable. However, treating this as a “real” distinction is somewhat akin to debating the properties of invisible theoretical materials in particle physics such as the infamous Higgs Boson.

Look, what people really don’t like about the CDA is exactly what I just explained – if an online publisher “knows” that he is publishing something false, § 230 will still protect him whereas an offline publisher would be liable. However (and not to channel Bill Clinton here), this ignores the practical difficulties in the definition of the word “knows”. If Ripoff Report receives a letter from some law firm in Texas claiming that something posted on our site is false, is that letter sufficient to say that we now “know” the post is false? Perhaps, but only if you’re naïve enough to think that no lawyer or client would ever make a false claim (shocking, but it happens). In addition, what happens when we have one party (the author) swearing their story is true, and the other (a lawyer or his client, a big corporation) swearing the author is lying. How can a website possibly settle such a dispute in order to “know” which party is correct?

We can’t, and thanks to § 230, we don’t have to. Is that fair? Well, in certain instances you can argue that it’s not, but as I always like to say, what’s the alternative? If website intermediaries have anything less than complete immunity for user-generated content, the result is that the heckler’s veto will result in many sites not allowing users to post anything at all. Personally, I don’t think that’s a better choice.

Coming soon public records from Jaburg and Wilk representation of Ripoff Report's attorney David Gingras. Yes, it's Jaburg and Wilk represented Gingras who, after employing Gingras, did so despite the fact he was arrested for sexual conduct with a minor. Maricopa Court Case Number: S-0700-CR-1999093685. Also, Public Records from Gingras' state bar record which is lengthy. http://www.jaburgwilk.com/ Of course a few words (and pictures shopping) about Gingras' wife, Stephanie Gingras are soon to come too. Stay tuned . . .

Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).